Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 (6 March 1961)

HIGH COURT OF AUSTRALIA

ELECTRIC POWER TRANSMISSION PTY. LTD. v. CUIULI [1961] HCA 3; (1961) 104 CLR 177

Negligence

High Court of Australia
Dixon C.J.(1), Fullagar(2), Kitto(3), Taylor(4) and Menzies(5) JJ.

CATCHWORDS

Negligence - Plaintiff young man of Italian origin - Employed as caretaker of large construction camp - Injured while cutting light firewood with a tomahawk - Employer's duty to take due care for employee's safety - Provision of more suitable tool - Instruction in the use of a tomahawk - Action for damages.

HEARING

Sydney, 1960, December 2, 6;
Melbourne, 1961, March 6. 6:3:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

1961, March 6.
The following written judgments were delivered:-
DIXON C.J. In my opinion this appeal should be allowed. The verdict for the the facts disclosed by the evidence. I do not think that it could reasonably be found that an improper tool had been supplied or that there had been a failure of due care on the part of the defendants their servants and agents to provide a proper tool for the use of the plaintiff or properly to instruct him in the use of the tool he employed or to warn him against possible risks. Nor do I think that the cause of the injury to his eye could reasonably be found to lie in any of the suggested breaches of duty on the part of the defendants. (at p179)

2. I have read the reasons prepared by Kitto J. and Taylor J. and I find it unnecessary to add anything to them. (at p180)

FULLAGAR J. In my opinion, the facts of this case disclose no ground whatever for a finding of negligence on the part of the defendant or any of its servants. I agree with the judgment of Kitto J. (at p180)

KITTO J. I cannot reconcile myself to the view of the learned judges of the Supreme Court that the verdict of the jury in this case should be allowed to stand. (at p180)

2. The respondent, a young man, was put to cut up sticks, or whatever one should call pieces of bush timber of a diameter of an inch to an inch and a half. There was a lot of such timber to be cut up, but he had only to cut it up in the intervals between other tasks which had to be performed while he was acting as caretaker of a camp, over a period of weeks, pending the arrival of a number of workmen who were to live there. Near the woodpile lay a tomahawk. It was the only cutting implement in sight, and I am prepared to consider the case on the assumption that there was no other appropriate implement on the premises. (at p180)

3. Care is always and obviously required in the management of a chopping instrument, and the respondent took sufficient care, over a period of six weeks or so, to avoid hurting himself. Then he was unlucky enough to sustain injury to an eye from a piece of wood which flew up as he struck it with the tomahawk. There was nothing unusual about the tomahawk, or about the task for which it was being used. But the respondent's first contention in the case was that the appellant, his employer, was guilty of a lack of due care for his, the respondent's, safety, when a tomahawk rather than an axe, or saw, or some other tool, was chosen as the implement to be used. In my view, there was simply no rational foundation whatever for this contention, and it was not open to acceptance by the jury. (at p180)

4. Still less, in my judgment, was the jury at liberty to accept the view secondly propounded by the respondent, that an employer reasonably careful for the respondent's safety would have given him such instruction in the use of the tomahawk as, if duly observed, would have obviated the accident that occurred. No doubt one must be on guard against reacting too strongly against the tendency which has been shown by some courts in recent years to put at altogether too high a level the duty of an employer with respect to the safety of his employee; but when I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so. It is true that in this case the man concerned had spent his boyhood in southern Italy, where the native timber is different in its qualities from the timber of this country, and where (it is said, and I am willing to assume) boys have less experience than Australian boys in the handling of tomahawks. But even in such a case, the idea seems to me too far-fetched altogether that an employer may be acting with less than reasonable solicitude for his employee, who accepts employment as a camp worker in the bush, if he does not explain to him how to take care for his safety while cutting up sticks with a hatchet. (at p181)

5. Some evidence was adduced at the trial as expert testimony, which threw no light whatever on any question in the case. If it had any effect at all, the effect must have been to cloud a perfectly simple case, and make it seem that there was a question for the jury where, as a matter of practical good sense, there was none. (at p181)

6. In my opinion the case should never have gone to the jury, and the verdict should be set aside. (at p181)

TAYLOR J. This is an appeal from an order of the Supreme Court of New South Wales by which a motion to that Court to set aside the verdict of a jury was dismissed. The verdict was given in an action in which the respondent had sought, successfully, to recover damages for personal injury which, it was claimed, resulted from the negligence of the appellant who at the material time was his employer. The respondent's injury was caused whilst he was chopping a length of bush timber, about one to one and a half inches in diameter, into a series of shorter lengths for use in a camp stove. This was but one of many pieces of such timber which his duty required him to prepare for use as firewood and the implement which he was using at the time was variously described as a short axe, a side axe and a tomahawk. It had a handle about a foot or fifteen inches long and, as a matter of common knowledge, it was of a type frequently to be found in use as a domestic implement. What happened was that whilst the respondent was chopping the piece of timber in question one small part of it, after having been severed, flew up and serious damage to his right eye was caused. In these circumstances he complained that his injury was caused by the appellant's negligence, the more or less general allegations being that for the task on which he was employed a tomahawk was an unsuitable implement, that its use unreasonably exposed the respondent to risk of injury and, further, that he should have been given some instruction in the use of the implement and warned of the dangers which, in the circumstances, the use of a tomahawk involved. A finding favourable to the respondent on the first of these issues was, the Full Court thought, open on evidence which, they considered, went to show that the use of a tomahawk was not only less suitable for the task in hand than a long-handled axe but also more dangerous from the point of view of injury to the user. Their Honours also took the view, though they entertained "not a little doubt," that "there was evidence of circumstances in which instruction might reasonably be thought to be required". (at p182)

2. Before proceeding to express the view which I have formed concerning these propositions it is desirable to make some further reference to the facts of the case. The respondent was a native of Italy and he came to this country in 1954 at the age of 15 years. Shortly afterwards he commenced to work and worked for a short period on the cane fields in Queensland. Thereafter he entered the employment of the appellant in its camp at Maryong as a kitchen hand. It was from there that he went some time later to Morven where the appellant had established a camp for the use of its employees who were engaged in the erection of transmission lines in more or less unsettled country. He was told by the foreman of the camp at Maryong of his projected move to Morven and informed that for some time he would be the only employee there. Apparently his main occupation was to be that of a caretaker in relation to the camp and equipment at Morven. Upon his arrival at the latter place he saw one Ambrosia who, in fact, was his predecessor at Morven and was then waiting to be relieved. Ambrosia indicated with, perhaps, a little more particularity than had been done by the foreman at Maryong, that his duties would include keeping the camp clean, he was to open the caravans and give them fresh air, he was to look after the material and equipment and he was "to chop the wood to prepare for when the cook comes to find it". He says that Ambrosia did not indicate anything as to what implement he was to use for this lastmentioned task but there was "a small axe . . . lying down near the wood". There was a store at the establishment which contained a number of tools, but there was no evidence whether it contained any axe or axes. It is true that the respondent said in cross-examination that he did not see one but it is clear from his evidence that he did not look for one. The tomahawk was ready to hand and, apparently he saw no reason to look for any other implement. The bush timber which he was required to prepare was lying on the ground and it covered an area said to be about six yards square and the pile was about three or four feet high. Ambrosia left the camp on the day after the respondent's arrival and the latter stayed on alone to look after the camp and to await the return, or arrival, some considerable time later of a number of the appellant's employees. He was still alone some six weeks later when he sustained his injury in the manner briefly described above. By that time he had prepared about three quarters of the pile of timber as fuel for the stove. (at p183)

3. In these circumstances the first question is whether the evidence can justify a finding that, in the language of the Full Court, the appellant "supplied" the respondent "with a small axe or tomahawk instead of a full sized axe". In my view it cannot. As already appears there was at the camp a store which according to the evidence contained a number of tools. For all we know it may well have contained an axe or axes; at all events there is no evidence to show that it did not. As already appears the selection of the tomahawk was made by the respondent and he did not seek any other implement. Naturally enough, because it was lying near the wood-pile, he may well have assumed that his predecessor had used the tomahawk for chopping the wood into shorter lengths but this, by no means, justifies the unequivocal assertion that the appellant at this remote camp provided him with a tomahawk and failed in its duty, if it had any such duty, to provide him with a long-handled axe. At the most the complaint must be that if there was any real element of risk in using a tomahawk for the purpose in question, the appellant failed to give him adequate instruction to enable him to select the right implement for the task. No doubt on any view there were many uses to which a tomahawk might appropriately have been put in and about a camp of this character and, no doubt, other simple tools were required, selected and used by the respondent in the performance of his duties. But to say that in the discharge of its obligation of care towards the respondent the appellant was in the circumstances of the case bound to specify that a long-handled axe and not a tomahawk should be used in chopping the timber in question or to instruct the respondent in the use of such a simple instrument as the latter is in my view to carry the matter beyond reason. If one seeks far enough it is possible to perceive an element of risk in the performance of any task however simple but the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful; it is a duty of reasonableness and that standard cannot be said to have required the appellant so to specify or instruct. (at p183)

4. But even if it is possible upon the evidence to say that the appellant did in fact provide the respondent with a tomahawk for the purpose of chopping the wood in question and that, unequivocally, it failed to provide him with a long-handled axe the respondent would in my opinion be in no better case. It is contended, however, that the contrary view is justified by evidence which, at first sight, may be thought to provide grounds for thinking that the use of a tomahawk for chopping small pieces of bush timber involves some real element of risk and that a long-handled axe is a more suitable and safer implement for such a task. But when the evidence is examined it is seen that it goes not further than to suggest that a person using a tomahawk for such a task is more likely to be struck in the face by small pieces than would be the case if he were using a long-handled axe. The reason given for this is, of course, that a person using a tomahawk would be closer to the point of impact between the implement and the timber being chopped. To my mind this is the substance of the evidence and it does not establish that the use of a tomahawk for the task upon which the respondent was employed unreasonably exposed him to any real risk of injury. No doubt, if he had been provided with a long-handled axe and he had injured his foot with it the complaint might have been made that if he had been provided with a saw the risk of injury to his foot would have been eliminated or diminished. On the other hand if, having been provided with a saw, he had managed to injure his fingers the complaint might have been that if he had been provided with a tomahawk that risk of injury would have been avoided. But in none of these cases would the suggested proposition suffice to establish that the employee had been unreasonably exposed to risk of injury. In my view it is clear that the evidence is incapable of supporting the conclusion that the use of a tomahawk for the purpose in question exposed the respondent generally to any greater danger than the use of any other implement. That being so it is impossible to say, even if it be assumed that the appellant provided him with a tomahawk and failed to provide him with a long-handled axe, that it failed in any duty of care towards the respondent. (at p184)

5. As already appears, the Full Court took the view, though with some doubt, that there was evidence of circumstances in which instruction in the use of the tomahawk might reasonably be thought to be required. With respect to the Full Court, I do not share this view. The task upon which the respondent was engaged was of a simple character and not one calling for instruction. Indeed it is difficult to imagine what sort of instruction the exercise of reasonable care might be thought to have required. When the accident happened the respondent, according to his evidence, was chopping a piece of timber which was lying on the ground and the only suggestion which has been made is that if he had been told that he should rest the piece of timber to be chopped upon another firm piece of timber the accident might have been avoided. I am, however, unable to see that this contention can provide any foundation for alleging a breach of duty on the part of the appellant. That being so I am of the opinion that the appeal should be allowed and the verdict of the jury set aside. (at p185)

MENZIES J. I agree with the judgment of Kitto J. (at p185)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court set aside and in lieu thereof order that the appeal to that Court be allowed with costs that the verdict upon the trial be set aside and judgment entered for the defendant with costs.